On 3rd February 2014, Sir Keir Starmer announced that what the Criminal Justice System really needed was a Victims’ Law. Anyone who blogs can feel his frustration at not being listened to when we have the answers. If only he had been in a position to do something about this in the last five years or so, the world might be a different place eh?
But anyway, he points to the difficulties (that undoubtedly exist) in the prosecution of offences of personal or sexual violence and states that it is not a question of individual failing, but a systemic one. He’s right, but he’s giving the wrong answer.
What is a Victims’ Law?
He is remarkably short on detail – “What is needed is a fundamental rethink, leading to a specific and legally enforceable Victims’ Law”. That’s it, no more details.
Keir rightly says that victims have a lot to gain from the ECHR, much more so in fact than defendants (he neglects to mention the unfortunate case of Waxman which confirms this). He distinguishes the Victims Code (we still haven’t had the response to the consultation, five months down the line, or any idea how it’s working) so it’s not that. Neither is it Victim Impact Personal Impact Statements (their efficacy as yet unproved) or specialist prosecutors (ditto).
So what does he actually want?
What he seems to be proposing, ultimately, is an inquisitorial rather than an adversarial system. That is not a new law but a complete overhaul of the way that Court proceedings have been conducted in this country for 400 years.
I am (perhaps surprisingly) not as wedded to the adversarial system as many are. I can see its faults as well as the advantages. But switching to an inquisitorial system is not a ‘Victims’ Law’, it is a completely different and much more fundamental debate. If you want to propose a switch to a European style justice system, be my guest, but good luck arguing that at the moment.
It also does involve the state doing some investigating which seems to have gone out of fashion at the moment.
What is wrong with his proposal?
Well, apart from it not being clear what he’s actually saying, there is a wider problem with the system here, and that is that it is fundamentally under-resourced. You can have all the policies in the world, as well as a shiny set of Procedure Rules, but if they’re not followed then where does it get you? Giving victim’s rights may or may not be a good idea, but a right is pretty useless if you can’t effectively enforce it.
I would hope in the high profile cases (such as the Yewtree ones) things are done properly. They most certainly aren’t in the majority of cases. I agree that this is not the fault of individuals, but basic maths. If you want to help victims, fund the CPS properly.
Have a case lawyer for each case. Listen to what victims want by way of support, rather than have a one size fits all policy. Make sure all directions of the Court are complied with so that no case is adjourned because of a failure to complete disclosure or serve evidence. Give each case a fixture, so a victim knows when they have to come to court. Don’t cut compensation for victims of crime. Don’t cut legal aid in family cases so victims of domestic violence (overwhelmingly female) with children get a proper service from ‘the system’. Keep all courtrooms open and make sure that there are enough jurors so cases get heard quickly. The list can go on and on.
All these things would help. All however take money, which is why they are not being done. Far easier to have a policy or protocol (or even a new law) which promises much, fails to deliver, and doesn’t cost much.
The truth is that many politicians (the ranks of which are probably shortly to be joined by Sir Keir) don’t care at all about victims, they just care about looking like they care about victims.
The Victims’ Code is a good example. As stated, we don’t know how it’s working (or not), but I get the impression from what I see in Court that it is having a very small impact. The process is complicated and has been introduced to comply with our obligations under EU Law. What advice and support does a victim get in helping challenge a decision? As far as I can see, none. To that extent, how useful is it? This appears to be a typical new initiative – all words and no actual action.
I would, however, wholeheartedly agree with Sir Keir’s statement that “can I advocate a pause in the oft-repeated mantra that we have the best criminal justice system in the world?”. This is not just the way that complainants are treated, but also witnesses,workers and, most importantly, defendants. We have a system that is falling apart and that is something that urgently needs addressing. Passing a Victims’ Law will do nothing to help that however.